April 2014

In 2010, Jenner & Block's Environmental and Workplace Health and Safety Law Practice launched its Corporate Environmental Lawyer blog. We hope that you have found our updates and insights on critical environmental, health & safety developments to be helpful and informative. Now, on the occasion of our 500th blog, and as Jenner & Block celebrates its 100th anniversary, we wanted to provide a brief overview of our practice, highlight some key themes that we intend to focus on in the Corporate Environmental Lawyer blog in 2014, and wish you a Happy Earth Day.

Jenner & Block's Environmental Health and Safety Law Practice was founded in 1978. As environmental, health, and safety ("EHS") law has evolved over the past three decades, so too has our practice. Our attorneys are recognized authorities on environmental, health, safety, transactional, and energy matters. We offer comprehensive solutions to complex EHS problems, drawing on our collective past experience as environmental prosecutors, in-house counsel, and environmental law teachers since the 1970s.

As evidenced by our 500 plus blog entries, we have now embraced social media because it allows us to provide timely information on EHS issues of concern to our clients. Our Twitter account (JennerBlockEHS), created in 2012, further enables us to communicate real-time information on breaking EHS issues important to U.S. business, in-house environmental counsel, and EHS professionals.

In 2013, our blog focused on several key issues, including water scarcity and climate change. We also implemented a weekly feature that provides an overview of current EHS cases pending before the United States Supreme Court. In addition, we focused on evolving regulatory issues concerning TSCA reform, green chemistry, and CERCLA and RCRA liability.

We would like to thank you for your past support and hope that you will continue to rely on the Corporate Environmental Lawyer blog for timely EHS news in 2014 and beyond. If you have any suggestions on how we might improve our blog or our overall EHS communications, please feel free to contact us.

In celebration of Earth Day, and on the occasion of Jenner & Block's 100th anniversary, we are also planting 100 trees this summer to commemorate improvements in environmental quality. For more details on the Firm's 100th anniversary, please visit www.jenner.com/about/history.

As part of the "Environmental & Energy Cert. Petition Watch" project, in the past two weeks, the following EHS-related petitions have been filed, denied, or granted. For a full list of EHS-related cert. petitions submitted from August 2013 through the present (as of Apr. 13, 2014), click here.

Question(s) Presented: Whether a state may, consistent with the dormant Commerce Clause, impose an ad valorem tax on natural gas that is being transported through interstate commerce but temporarily stored in the state by a common carrier, even though the taxpayer has no control over where the gas is stored and no other connection with the state.

Question(s) Presented: (1.) Whether a federal agency's failures to acknowledge its direct, and derivative, jurisdictional responsibilities are subject to judicial review and resolution. (2.) Whether a federal agency's fundamental failure to acknowledge its jurisdiction, is distinct from "enforcement" decisions the agency subsequently can make after acknowledging that jurisdiction.

The U.S. Department of Transportation's Federal Railroad Administration (FRA) recently announced its intention to issue a proposed rule requiring two-person train crews on crude oil trains and establishing minimum crew size standards for most main line freight and passenger rail operations. The FRA also intends to advance a rulemaking on train securement and recommends a rulemaking on the movement of hazardous materials.

The announcement follows the deliberations of three Railroad Safety Advisory Committee (RSAC) Working Groups on Appropriate Train Crew Size, Securement, and Hazardous Materials Issues. All three Working Groups were created at DOT's request last summer in response to the Lac-Mégantic derailment. The emergency meeting was held to evaluate and consider wide-ranging proposals to further enhance railroad safety including the safe shipment of crude oil by rail. Two of the Working Groups produced recommendations that were adopted by the full RSAC for consideration in future rulemakings. In light of the working group's failure to reach consensus on crew size, the FRA took action today to move forward with a rulemaking.

While existing FRA regulations do not mandate minimum crew staffing requirements, current industry practice is to have two person crews for over-the-road operations. The notice of proposed rulemaking (NPRM) will most likely require a minimum of two person crews for most mainline train operations including those trains carrying crude oil. It is also expected to include appropriate exceptions.

FRA plans to issue an additional NPRM based on the consensus recommendations of the Securement Working Group and approved by the full RSAC that would prohibit certain unattended freight trains or standing freight cars on main track or sidings and require railroads to adopt and implement procedures to verify securement of trains and unattended equipment for emergency responders. It would also require locomotive cabs to be locked and reversers to be removed and secured. Railroads would also be required to obtain advance approval from FRA for locations or circumstances where unattended cars or equipment may be left.

The full RSAC also approved four recommendations of the Hazardous Materials Issues Working Group relating to identification, classification, operational control and handling of certain shipments. The four recommendations, directed to the Pipeline and Hazardous Materials Safety Administration (PHMSA), include amending or revising the definitions of "residue" and "key train," and clarifying its regulatory jurisdiction over the loading, unloading and storage of hazmat before and during transportation. PHMSA continues to advance a rulemaking addressing the integrity of DOT Specification 111 tanker cars and the safe shipment by rail of flammable materials such as crude oil.

The Illinois Institute for Continuing Legal Education (IICLE) has released a new publication titled Environmental Law in Illinois Corporate and Real Estate Transactions 2014 Edition.

According to IICLE, this publication is a unique resource that balances Illinois business and real estate practice with environmental law issues. Whether you represent commercial landlords, manufacturers, real estate developers, government agencies, or private landowners, this handbook will prepare you to tackle any environmental issue. It also includes guidance on how to conduct an "all appropriate inquiries" investigation in a real estate transaction, the environmental due diligence process, practice in various environmental forums in Illinois, programs and redevelopment incentives to return brownfields to productive use, and how federal bankruptcy law intersects with environmental issues in real estate transaction.

The following chapters in this publication were authored by Jenner & Block EHS lawyers.

U.S. EPA's proposed screening guide for evaluating volatilization risks takes into consideration the chemical and physical properties of the pesticide to evaluate the rate at which a pesticide volatilizes from a treated site and then relies on the AERSCREEN model to calculate estimated pesticide concentrations in the air at different distances from the treated location.

In conjunction with the release of the draft screening guide, U.S. EPA also released the results of a screening analysis that U.S. EPA ran using this proposed methodology on 253 commonly used pesticides. Of these 253 pesticides, 68 pesticides failed. Per the draft guidance, if a pesticide fails the screening analysis, that is a trigger for U.S. EPA to further evaluate the volatilization risks of that particular pesticide. Commonly used pesticides that failed U.S. EPA's draft screening analysis included atrazine, chlorpyrifos, diazinon, and pyrethrin.

U.S. EPA's proposed screening analysis has already been the subject to criticism by industry groups that have gone on record as saying that the draft assessment is too strict, relies on inappropriate models. Environmental groups, on the other hand, believe the assessment to be too lax and incorrectly weights the effects of dispersion on the exposure assessment. The comment period on U.S. EPA's draft screening analysis guidance will expire on May 27, 2014.

As part of the "Environmental & Energy Cert. Petition Watch" project, in the past week, the following EHS-related petitions have been filed, denied, or granted. For a full list of EHS-related cert. petitions submitted from August 2013 through the present (as of Mar. 30, 2014), click here.

Question(s) Presented: (1.) Whether the Ninth Circuit properly held - in conflict with this Court's decisions - that the federal reserved water rights doctrine authorizes the unprecedented federal takeover of Alaska's navigable waters sanctioned by the 1999 Rule. (2.) Whether the Ninth Circuit properly proceeded on the premise - which also conflicts with this Court's decisions - that ANILCA could be interpreted to federalize navigable waters at all given Congress's silence on the Act's application to navigable waters.